Is Council Abusing Closed Session Exceptions?

As we have previously discussed, California Government Code §549501 et seq., commonly referred to as “the Brown Act,” specifically identifies what matters are permitted to be discussed in Closed Session. It is critical to understand that allowable Closed Session items are narrowly defined exceptions to the open meeting law; they are not a series of broad loopholes available to allow staff to meet privately with the full Council and circumvent the public’s right to participate and be heard regarding its deliberations.

We have become increasingly concerned about the frequency with which the Council is meeting in Closed Session for Public Employee Performance Evaluations, under the Personnel Exception. According to the California Attorney General, the Personnel Exception exists to “…avoid undue publicity or embarrassment for public employees and to allow full and candid discussion of such employees by the body in question… Accordingly, the Act provides for closed sessions regarding the appointment, employment, evaluation of performance, discipline or dismissal of a public employee. (§54957.)”

We expressed concern in a previous post about the four back-to-back Closed Session performance evaluations scheduled for the City Attorney. On tomorrow night’s City Council Agenda, it appears that sufficient direction was provided to her during these Closed Session evaluations to prepare a staff report detailing several options for contracting out City Attorney services upon her retirement. This has occurred despite there having been absolutely no Closed Session Announcement regarding the Council’s direction (although we did predict this would happen in the post linked above).

Now we are seeing recurring Closed Session performance evaluations for the City Manager on 11-05-13, 11-19-13, and again tomorrow, 12-17-13. Because we have been watching Council agendas carefully since Nakamura was hired on September 1, 2012, we know that this has been a frequent occurrence, so we went back and counted. Nakamura has had nine Closed Session performance evaluations in 16 months. Again with no Closed Session Announcements.

(In fact, if you review the Council minutes over the past year, what you will find under every single Closed Session Announcement is “No Action Taken.”) Interesting — and highly suspicious.

So, just how many performance evaluations does Nakamura’s contract with the City require? Section 4 states that Nakamura is to have an annual evaluation commencing in April 2013 and every year thereafter as long as he maintains employment.

That’s right. One performance evaluation per year is what is contractually scheduled, yet Nakamura is coming up on his ninth since December 2012.

That begs the question: If the Council is taking no action requiring a public announcement, what, exactly, is going on in these private sessions with Nakamura?

Are they discussing next steps in his grand rightsizing plan? Not eligible for Closed Session.

Are they discussing plans for further budget or staffing reductions? Not eligible for Closed Session.

Are they discussing how to handle public criticism of their agenda? Not eligible for Closed Session.

Whatever they are discussing, it clearly falls outside the narrow scope of the Personnel Exception.

This needs to stop. The Council appears to be using these Closed Sessions to plan and deliberate away from public scrutiny, and the public should be outraged.

In the Chico Taxpayers Association’s December 14 blog post, Sustainability Task Force meeting a lesson on “open meetings” law, Chico City Clerk Debbie Presson is reported as having commented, “[The Brown Act]… was designed to ensure the public has a chance to participate… to hear your deliberations… In other words, the public needs to know what or who influenced the decisions that are being made by our public boards and commissions… a small group behind closed doors precludes the chances of the public being able to participate…”

So, can we all agree to follow her rules?

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I keep trying to get Sorensen to tell us what’s going on in the bargaining sessions, and he comes back with “nothing” or “that agenda item is just put on the agenda automatically, we aren’t necessarily having a closed session meeting.”

I can’t help but suspect the whole garbage franchise deal has gone down in these “closed sessions” too. It’s advancing too fast, and it hasn’t been discussed in committee that I recall. The public has never had a chance to vet that plan, or the $100,000 in “emergency” funding that they will spend on the consultant.

So, I vote “yes”, they are abusing their closed meeting privileges. They use the Brown Act for a shield when we want to talk about something, but they use it for a kick ball when we’re not around.